The Constitution - Lecture 1

How does Jennings define constitution?

defines them in two senses -

1. ‘a document in which are set out the rules governing […] operation of the main institutions of government, and the general principles applicable to their relations to citizens.’

2. ‘rules determining the creation and operation of Governmental institutions’ → rules can be customary and can be legal or non-legal, it usually relates to how MPs are elected/who sits in parliament/ rules governing powers/what's the relationship between the monarch and PM

The difference between these are written documents versus unwritten rules.

How did the Supreme Court in Miller I define Constitution?

They defined it as “a Constitution, established over the course of our history by common law, statutes, conventions and practice […] not been codified […] remains sufficiently flexible to be capable of further development.”

The Supreme Court mentions principles in an official document - this contrasts to Jenning’s interpetation.

What was the question and concerns regarding Miller I?

There was a question of whether the PM can give notice to leave the EU, following the referendum. Once the notice is given, there is 2 years to come up with an agreement. However, if there is no conclusion, this would cease the UK's involvement in EU treaties.

Three concerns were -

1. It would upset the UK's devolutionary arrangements such as in Scotland and Northern Ireland. This means that the PM would change this WITHOUT consultation of the devolved nations.

2. The PM revoking the rights of nearly 2/3 million EU citizens who are living in the UK.

3. It would conflict with the ECA/European Communities Act which allowed for EU law to be transferred over to the UK and therefore prerogative powers cannot be use to make such drastic an action.

What are the key institutions in the UK?

1. The Crown

   • The UK is a constitutional monarchy. The sovereign/monarch is NOT the same as 'the Crown'. The Monarch is the individual, however 'the crown' is a wider function of services - similar to the functions of a state.

   • The Prerogative Power is resided legally within the crown but by convention is exercised on the advice of the PM, consisting of important areas such as war, pardons and foreign affairs

2. The Executive

   • broadly distinguish between the Government, composed of elected politicians, public officials and the administration.

   • The government is elected in, while the administration is not and they are also subject to being judicially reviewed

3. Parliament

   • Parliamentary Democracy - neither presidential or semi-presidential

   • ‘scrutinises bill’, they do NOT make them - the government comes up with proposals usually

   • Bicameral - consists of the Commons and Lords

     • Commons - elected, consists of opposition and Government

     • Lords - appointed, hereditary and religious peers

4. Devolved Legislatures and Governments

   • The UK is nominally a unitary state, but best considered ‘quasi-federal’ owing to the devolution arrangements

     • now characterised the ‘territorial constitution.’

What is the Judicial Review procedure on Administrative Actions? And what are the four grounds for Judicial Review?

The judicial review (‘JR’) procedure -

• Must claim within three months of the alleged illegality against a public body

• Permission stage: judge examines the written submissions and decides whether there is an ‘arguable case’ and it is brought promptly.

• Substantive hearing: Claimants and government appear in court and make oral arguments.

There are four grounds for judicial review -

1. Procedural unfairness

2. Illegality

3. Irrationality and unreasonableness

4. Violation of convention rights or common law rights

UK constitution and hierarchy of norms?

UK constitutional law has been that there is no hierarchy of statutes – all of them have the same legal status. The latest in time impliedly repeals any inconsistent earlier statute.

The common law is subordinate to primary legislation. However, a statutory instrument (delegated lawmaking instrument), or purported exercise of prerogative or statutory powers that violates common law rights or duties will be found unlawful.

Statute beats prerogative, as shown with the Case of Proclamations.

What key constitutional statutes are recognised by the common law?

These laws have a higher legal status is recognised

• Magna Carta

• Human Rights Act

What are the 4 general principles of the constitution?

1. democratic accountability

   • This is the idea that key political decisions must rest with the elected representatives of the people.

2. separation of powers

   • The principle that different branches of government perform different functions, and are to some extent autonomous from one another, and perform a checking function to prevent excessive accumulation of power by one branch.

   • There are questions as to whether the British constitution truly has this?

3. rule of law

4. respect for human rights

   • extends to the Magna Carta to the HRA 1998 which gave legal effect to fundamental rights by the courts

   • Example case of this → Entick v Carrington

Explain the case of Entick v Carrington - context and outcome of the case

Context - The defendant had Entick ransack the house of the newspaper writer due to his article which the secretary of state did not like.

Outcome - If the public authority wishes to infringe on the rights and liberties of others, they MUST provide evidence and authority to authorize their search

Dicey on the definition on constitution

Dicey emphasised the absence of hierarchy in the UK law and that there is a notion that all laws are equal, he stated -

‘neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered a supreme law’.

Diverging modern view on the constitution? - Thoburn v Sunderland City Council

Dicey’s view on the constitution are questioned in recent times - as demonstrated in the case of Thoburn v Sunderland City Council.

• Laws LJ suggested that ‘[w]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes’

  • The latter category, he said, included legislation that affects individuals’ fundamental rights.

  • In Thoburn, Laws LJ said that this doctrine of ‘implied repeal’ should NOT apply to constitutional statutes. This contradicts the general principle that the courts will prioritise the more recent one: even if the later Act does not explicitly say that it is overriding the earlier one, it will have that effect.

This means there is now a special category of harder-to-amend constitutional legislation in the UK. But such legislation is still not particularly hard to amend: all that is needed is express words of repeal.

On this view, legislation dealing with constitutional matters can still be repealed or amended simply by Parliament enacting another piece of legislation—but only if, in that legislation, Parliament specifically says that it intends to override an earlier piece of constitutional legislation.

Judge made law and common law? What is their relation?

Courts don’t just apply the law to the facts, but they also make law - creating public law. This is done in three ways.

1. Interpreting constitutional legislation

   • put flesh on bones by giving it more a precise meaning, applying it to real cases

   • what the judge thinks Parliament was trying to achieve

2. judge-made common law rules

   • certain legal principles of ‘good administration’

3. common law constitutional principle

How far can the court go?

Parliament is sovereign, the court would have to apply the legislation however repugnant it was to such a principle

does international law have an influence to the UK constitutional law? and in what two ways?

1. when the UK becomes party to a treaty—that is, an agreement with one or more other states that is binding in international law—it is often given effect in national (or ‘domestic’) law through the enactment of legislation.

   • An example is the HRA 1998

2. even if legislation is not enacted so as to give domestic effect to a treaty, there is a well-established principle that national law should be interpreted, where possible, in conformity with treaties to which the UK is a party

Examples of unwritten conventions? Examples of ones which transmuted into formal (but not legal) code?

Examples of unwritten convention -

• For example, while the King is legally free to ask someone other than the leader of the majority party to form a government, there is a long-standing political precedent—or ‘constitutional convention’—to the effect that he will ask that person to become Prime Minister

Formal (not legal) code -

• Ministerial Code → there was an assumption that government Ministers would be accountable to Parliament for the policies, decisions, and actions of their departments and agencies. However, now they have been written down as opposed to being merely assumed even though they have no legal effect or complications if you go against them - the complications are merely political.

• Cabinet Manual → guide those working within the Government or in Government Cabinet positions.

What is the difference between legal and political constitutionalism?

In regards to political constitutionalism, people are obliged to respect the norms in regards to constitutional conventions. Conventions are legally unenforceable; their enforceability is more in relation to political complications or consequences.

Legal constitutionalism is different in the sense that it is legally enforceable, and people will be held legally liable as it is written down and binding in a legal sense unlike political constitutionalism.

What did Dicey define as a convention?

Dicey stated that they form the ‘morality’ of the constitution, defining them as ‘understandings, habits, or practices’ that ‘regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials’

What do other authors define as convention?

‘flesh which clothes the bones of the law’

What do Elliot and Thomas define as convention?

• Constitutional conventions are concerned with constitutional matters […] different from mere social conventions”

• Conventions operate in a manner that is supplementary to law - a constitutional actor who is legally free to do something may be constrained from doing so by convention

• Those at whom conventions are directed regard themselves as bound by them—that is, they feel obligated in some sense (albeit not a legal one)

What is Jenning’s test on determining whether something amounts to being a convention?

Jenning’s Test consists of three questions which help us determine whether it is a convention -

1. What precedent, if any, is there for the practice?

2. Do those adhering to the precedent believe that they are bound to do so, as if by a rule?

3. Is there a reason for the rule?

An example of a convention in regards to devolved nations?

Sewel Convention

It holds that the UK Parliament will not normally legislate on devolved matters without the prior consent of the relevant devolved legislature.

• The absence of precedent was more than compensated for by the fact that a strong constitutional principle—namely, that relevant parts of the UK should enjoy a degree of self-government—underlies the Sewel Convention

What are the reasons why constitutional acts obey convention even if they are not legally enforceable?

• conventions will generally reflect individual constitutional actors’ personal sense of constitutional morality

• they will respect it because they recognise that it reflects a widely shared sense of constitutional morality

• Someone might go along with a convention for self-serving reasons. Even though legal liability need not result from breaching a convention, plenty of other unpleasant consequences might occur - such as political complications

Are conventions legally relevant? - and what are the case laws relating to it?

The general view, as we have noted, is that conventions are legally unenforceable.

• The case concerning the patriation of the Canadian constitution

• Madzimbamuto v Lardner-Burke

• Miller I

• Evans v Information Commissioner

Are conventions legally relevant? - focus on Canadian Constitution Case?

The case concerning the patriation of the Canadian constitution is an example of a convention being breached.

The Canadian Supreme Court held that the federal government, if it proceeded in spite of most provinces’ objections, would be acting ‘unconstitutional[ly] in the conventional sense’. But the court went on to conclude that no law prevented the government from proceeding with its attempt to reform the constitution against the provinces’ wishes.

Are conventions legally relevant? - focus on Madzimbamuto v Lardner-Burke

Madzimbamuto v Lardner-Burke →

UK courts have been unreceptive to the argument that conventions can be legally enforced. In this case, it was argued that the UK Parliament had acted improperly by enacting legislation in circumstances that breached a clear convention.

Even if it was ‘unconstitutional’ for Parliament to legislate thus—for example, if people would have thought there to be ‘moral’, ‘political’, or ‘other reasons’, making it ‘highly improper’ for Parliament to act as it had done—the court, ‘in declaring the law’, was ‘not concerned with these matters’.

Are conventions legally relevant? - focus on Miller I case

The Supreme Court rejected an attempt to draw it into adjudicating upon the Sewel Convention. That convention was, said the majority, ‘a political restriction on the activity of the UK Parliament’ […] the majority went on, ‘are neither the parents nor the guardians of political conventions; they are merely observers.’

The court went on in Miller I to say that courts ‘cannot give legal rulings on [a convention’s] operation or scope, because those matters are determined within the political world’.

Are conventions legally relevant? - focus on Evans v Information Commissioners

This case law does suggest that conventions are not wholly legally irrelevant. This involved a challenge to the government’s refusal to disclose ‘advocacy’ letters to Ministers in which Prince Charles (as he was then) sought to advance the interests of his charities or promote his own views.

Thus while the tribunal did not ‘enforce’ the convention, its analysis of the convention played a major part when it came to deciding whether the relevant legal test—that is, whether disclosure was in the public interest—was satisfied.

Miller II - context, issue and outcome of the case

Context → The question for the court was whether the scope of the prerogative power to prorogue—that is, suspend—Parliament had been exceeded when the Prime Minister advised Queen Elizabeth II to prorogue Parliament for five weeks shortly before the then anticipated date of the UK’s exit from the EU.

Issue → In holding that the limits on the prerogative had been exceeded, thus rendering the prorogation unlawful and without legal effect, the court determined the extent of the power by reference to two fundamental principles - the sovereignty of Parliament and the principle of executive accountability to Parliament.

Outcome → The Court concluded that if (as in this case) proroguing Parliament has the effect of compromising those fundamental principles without adequate justification, the prorogation will be unlawful.

What are constitutional principles?

This means fundamentally important values that concern the constitution and which serve at least one (and often all) of several functions.

Example of constitutional principle - Parliamentary Sovereignty, rule of laws and separation of powe

What are the roles of constitutional principles?

1. Explanatory function

   • they enable us to understand why certain arrangements obtain, why certain rules, whether legal or conventional, exist, and how the constitution operates.

2. Physical impacts

   • On a political level, they are given effect via conventions that influence how constitutional actors behave. On the legal plane, they shape the interpretation and development of the law.

3. Evaluative role

   • whether the enactment of a particular piece of legislation, a government policy, or decision taken by a Minister—is legitimate and acceptable falls to be judged (by the public, MPs, and so on)